Braaten vs Newmont USA Limited

Filing 16

ORDER denying 8 Motion to Dismiss and granting 12 , 14 Request for Leave to File Amended Complaint. Amended Complaint due within 7 days. Signed by Judge Larry R. Hicks on 8/10/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOHN BRAATEN, an individual,

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Plaintiff,

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v.

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NEWMONT USA LIMITED, a foreign
corporation,

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Defendant.
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3:15-CV-00174-LRH-WGC
ORDER

This case involves a claim under the Age Discrimination in Employment Act of 1967

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(“ADEA”). Before the Court is Defendant Newmont USA Limited’s (“Newmont”) Motion to

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Dismiss. Doc. #8.1 Plaintiff John Braaten (“Braaten”) filed an Opposition (Doc. #12), to which

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Newmont replied (Doc. #15). In an Errata following his Opposition, Braaten attached a proposed

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Amended Complaint. Doc. #14.

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I.

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Facts and Background
Before his termination, Braaten was employed as an underground maintenance general

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foreman for Newmont for more than twenty-four years. On June 2, 2014, Braaten was charged

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with destruction of property and driving under the influence of alcohol, both related to an April 3,

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2014, motor vehicle incident. On April 7, 2014, Braaten commenced short term disability under

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Newmont’s insurance plan. Braaten was arrested on June 9, 2014, and Newmont learned of the

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Refers to the Court’s docket number.

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charges from an article in the newspaper on June 10, 2014. Braaten entered a guilty plea in the

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Elko County Justice Court on October 7, 2014.

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Newmont’s standards of conduct provide: “In the event you are charged with or convicted

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of a crime you must report that fact to your department and to your human resources representative

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within five (5) days of being charged or convicted.” Braaten did not report his charges to anyone at

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Newmont within five days of the June 2, 2014 charges. Learning of his arrest on June 10, 2014,

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Newmont called Braaten and scheduled a meeting for June 26, 2014. Newmont suspended Braaten

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on this date pending further investigation of its ethics code. Newmont terminated Braaten’s

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employment on July 7, 2014. Braaten was fifty-four years old at the time of his termination, and

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alleges that he planned to work at Newmont until his retirement at sixty-two years of age.

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Newmont alleges that he was replaced by a younger employee with equal or less qualifications who

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would not be eligible to “grandfather” into Newmont’s earlier benefits package.

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On March 23, 2015, Braaten filed his Complaint alleging age discrimination under the

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ADEA. Doc. #1. On June 18, 2015, Newmont filed its Motion to Dismiss. Doc. #8. Following a

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timely Opposition, Braaten filed a proposed Amended Complaint on July 23, 2015. Doc. #14.

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II.

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Legal Standard
Newmont seeks dismissal for failure to state a claim upon which relief can be granted

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pursuant to Federal Rule of Civil Procedure 12(b)(6). To survive a motion to dismiss for failure to

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state a claim, a complaint must satisfy the Federal Rule of Civil Procedure 8(a)(2) notice pleading

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standard. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). That is,

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a complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief.” Fed. R. Civ. P. 8(a)(2). The 8(a)(2) pleading standard does not require detailed

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factual allegations, but a pleading that offers “‘labels and conclusions’ or ‘a formulaic recitation of

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the elements of a cause of action’” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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To satisfy the plausibility standard, 8(a)(2) requires a complaint to “contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

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Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual content allows

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the Court to draw the reasonable inference, based on the Court’s “judicial experience and common

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sense,” that the defendant is liable for the misconduct alleged. See id. at 678-79. The plausibility

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standard “is not akin to a probability requirement, but it asks for more than a sheer possibility that a

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defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a

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defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to

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relief.” Id. at 678 (internal quotation marks omitted).

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In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as

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true. Id. The “factual allegations that are taken as true must plausibly suggest an entitlement to

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relief, such that it is not unfair to require the opposing party to be subjected to the expense of

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discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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Moreover, “bare assertions . . . amount[ing] to nothing more than a formulaic recitation of the

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elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret Serv.,

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572 F.3d 962, 969 (9th Cir. 2009) (citing Iqbal, 556 U.S. at 681) (brackets in original) (internal

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quotation marks omitted). The court discounts these allegations because “they do nothing more

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than state a legal conclusion—even if that conclusion is cast in the form of a factual allegation.”

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Id. (citing Iqbal, 556 U.S. at 681). “In sum, for a complaint to survive a motion to dismiss, the

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non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly

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suggestive of a claim entitling the plaintiff to relief.” Id.

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III.

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Discussion
Newmont argues that Braaten fails to allege the prima facie elements of an ADEA claim

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because the uncontested facts show that he was fired for failure to comply with the company’s

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standards of conduct. Braaten counters that he was not required to report the charges within five

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days of June 2, 2014, and that a plaintiff is not required to allege that the termination was merely a
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pretext for discrimination at the pleading stage. Braaten adds that any deficiency in his Complaint

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is cured by the proposed Amended Complaint filed on July 23, 2015.

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“The ADEA prohibits an employer from, among other things, ‘discharging’ an employee

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who is over forty years of age ‘because of’ the employee’s age.” Sheppard v. David Evans and

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Assocs., 694 F.3d 1045, 1049 (9th Cir. 2012) (quoting 29 U.S.C. § 623(a)(1), 631(a)). An age

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discrimination claim can be based on circumstantial evidence or direct evidence. Id. ADEA claims

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based on circumstantial evidence are analyzed under the three-step burden-shifting framework set

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forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Diaz v. Eagle Produce Ltd.

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P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008). Under McDonnell Douglas, the plaintiff “must first

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establish a prima facie case of age discrimination.” Id. Once this is established, “the burden shifts

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to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment

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action.” Id. If the employer does so, the burden shifts back to plaintiff to “prove that the reason

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advanced by the employer constitutes mere pretext for unlawful discrimination.” Id. To establish a

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“plausible” prima facie case of age discrimination, plaintiff must allege that: (1) he was at least

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forty years old; (2) he was performing his job satisfactorily; (3) he was discharged; and (4) he was

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“either replaced by [a] substantially younger [employee] with equal or inferior qualifications or

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discharged under circumstances otherwise giving rise to an inference of age discrimination.”

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Sheppard, 694 F.3d at 1049 (emphasis and alterations in original) (quoting Diaz, 521 F.3d at 1207).

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Although short, Braaten’s Complaint succeeds in alleging a prima facie case of age

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discrimination. The Complaint states that: (1) Braaten was fifty-four years old when terminated

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(Doc. #1 ¶9), (2) he had “an excellent working and attendance record” throughout his twenty-four

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years of employment (id. ¶2); (3) he was terminated on July 7, 2014 (id. ¶3); and (4) he “was

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replaced by a substantially younger individual with equal or less qualifications than Plaintiff” (id.

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¶7). The Complaint adds that Braaten is not aware of any other employee terminated or disciplined

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under Newmont’s reporting policy in his twenty-four years of employment. Doc. #1 ¶6. In

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Sheppard, the Ninth Circuit denied the defendant’s motion to dismiss a complaint that likewise
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alleged the bare-bones elements of an ADEA age discrimination claim. 694 F.3d at 1047-48

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(“[W]e conclude that Sheppard’s amended complaint, while brief, nonetheless satisfies Rule

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8(a)(2)’s pleading standard.”). Newmont argues that Sheppard is distinguishable because unlike

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Braaten, the employee in Sheppard “properly pleaded that she qualified for protection under the

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ADEA by specifically alleging the facts regarding similarly-situated employees.” Doc. #15 at 7.

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However, although Sheppard indicated that she was the oldest of five comparative employees—the

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other four of whom kept their jobs—like Braaten she did not identify these employees by name.

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Sheppard, 694 F.3d at 1048. Additionally, the Ninth Circuit emphasized that Sheppard’s reference

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to the employees who kept their jobs supported her claim that younger employees were treated

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more favorably. Id. at 1050. Braaten’s allegation that he was replaced by a younger employee with

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equal or less qualifications achieves the same result and therefore satisfies Rule 8(a)(2). See Doc.

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#1 ¶7.

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Newmont’s primary argument is that Braaten’s age discrimination claim must fail because

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he did not inform Newmont of the charges against him within five days as required by the

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company’s standards of conduct. However, this argument goes to the company’s legitimate

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nondiscriminatory reason for terminating Braaten, which is an issue that must be resolved at the

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summary judgment stage. Shelley v. Geren, 666 F.3d 599, 608 (9th Cir. 2012) (finding that the

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McDonnell Douglas burden-shifting framework applies to ADEA claims at the summary judgment

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stage). Accordingly, Braaten’s failure to notify Newmont does not influence the Court’s analysis of

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whether Braaten met the Rule 8(a)(2) pleading requirements.

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Newmont also argues that the Complaint fails to state a claim because it does not give an

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example of an employee outside of Braaten’s protected class who was criminally charged but not

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subject to the company’s reporting requirement. However, the fourth prong of the prima facie case

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requires plaintiff to allege that he was “either replaced by [a] substantially younger [employee] with

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equal or inferior qualifications or discharged under circumstances otherwise giving rise to an

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inference of age discrimination.” Sheppard, 694 F.3d at 1049 (emphasis and alterations in
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original); see also Diaz, 521 F.3d at 1207-08 (“An inference of discrimination can be established

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by showing . . . that others not in their protected class were treated more favorably.”). Because this

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prong of the prima facie case standard is disjunctive, Braaten must allege either that he was

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replaced by a younger employee with equal or less qualifications, or that there are other

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circumstances that give rise to an inference of discrimination. Because Braaten alleged that he was

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replaced by a younger employee with equal or less qualifications, he is not required to allege that

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others outside his class were treated more favorably. Accordingly, the Court denies Newmont’s

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Motion to Dismiss because Braaten has fulfilled the Rule 8(a)(2) pleading requirements for an

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ADEA claim. See Sheppard, 694 F.3d at 1047-48.

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Despite maintaining that his Complaint properly states a claim under the ADEA, Braaten

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requests leave to amend his Complaint to add allegations such as: “Others with DUI charges who

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did not timely report the charges to Defendant were not terminated, and [] at least one of these

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individuals was outside Braaten’s protected class.” Doc. #14-1 ¶7. Newmont argues that it would

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be “virtually impossible” to answer the proposed Amended Complaint because it is vague as to the

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identity of the “others” who were not subjected to the notice requirement. Doc. #15 at 9. The

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standard for granting leave to amend is generous, and courts will generally only decline to grant

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leave to amend if the party opposing amendment shows “bad faith, undue delay, prejudice to the

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opposing party, futility of amendment,” or that the plaintiff has previously amended the complaint

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without healing its defects. United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011)

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(citing Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)); see also Fed. R. Civ. P. 15(a)(2)

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(“The court should freely give leave when justice so requires.”).

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The Court has reviewed Braaten’s proposed Amended Complaint and finds that it

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adequately pleads an ADEA age discrimination claim under Rule 8(a)(2) because it contains the

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same elements of an age discrimination claim that were in the original Complaint, and includes

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additional allegations. Although the Amended Complaint does not identify the individual outside

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Braaten’s protected class who did not timely report a criminal charge but was not fired, the
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allegations in the Amended Complaint are sufficient to put Newmont on notice about Braaten’s

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claim so that they can file an Answer. Accordingly, the Court grants Braaten leave to file his

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Amended Complaint within seven days of this Order.

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IV.

Conclusion

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IT IS THEREFORE ORDERED that Newmont’s Motion to Dismiss (Doc. #8) is DENIED.

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IT IS FURTHER ORDERED that Braaten’s Request for Leave to File an Amended

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Complaint (Doc. #12; Doc. #14) is GRANTED. Braaten shall file his Amended Complaint within

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seven (7) days of this Order.

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IT IS SO ORDERED.
DATED this 10th day of August, 2015.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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